Law Offices of Alan L. Pitcaithley


Personal Injury FAQ


Can I Trust the Insurance Company ?

Answer: No. The insurance company expects its insurance “adjusters” to pay as little as possible to get the injured party to settle the claim and sign a release. Once the release is signed (absent fraud), the injured party has settled the claim for all time (even if it is later discovered the injured party’s injuries are far more serious that originally believed). Insurance companies are in business to make money. To do this the company expects to collect more in premium payments than it pays in claims. Insurance companies, and insurance adjusters, do not have your specific interests in mind when an offer to settle is extended. Most insurance adjusters use computer software to place a value on your claim, particularly in cases the insurance industry labels as “soft-tissue minor impact” (MIST) auto accidents.

Identifying the “Deep Pocket” – Who Is Going To Pay For the Loss/Damages ?

Answer: As soon as it appears a person or persons have been injured by reason of the negligence of another (be it a driver, landowner, store owner, product maker/designer, etc.), the next most fundamental question needs to be answered:  WHO IS GOING TO PAY FOR THE LOSS AND DAMAGE caused by the negligent party?

  1. Does the negligent party or wrongdoer have assets sufficient to cover the loss?
  2. Does the negligent party or wrongdoer have insurance in a sufficient amount to cover the loss?
  3. Does the injured party himself/herself have an insurance policy that provides coverage for uninsured or underinsured motorists?

    These inquiries are referred to as identifying the “Deep Pocket”.  If the attorney is unable to identify a deep pocket (a person or entity capable of paying the loss), no matter how serious the injuries may be, and no matter how egregious the wrongful conduct of the defendant maybe, the injured party will not have a “financially viable” claim against the negligent wrongdoer in the case.  This happens in a surprising number of cases.

In 2019, 12.6% of motorists nationwide, or about one in eight drivers, were fully uninsured, according to a 2021 study by the Insurance Research Council (IRC). In this same study, 16.6% of drivers on California roads and highways had no insurance at all. A significant number of those that had insurance were grossly underinsured. To be street legal in California, a driver need only have $15,000 of liability insurance person per person (injured) per collision. This would not likely cover the expenses incurred in a single level IV trauma unit Emergency Room visit (severely injured patient). It is no surprise that nearly 90% of drivers who have no automobile liability insurance also have no assets or net worth to speak of, i.e. they are “collection” or “judgment” proof.  This is why automobile drivers in California are urged to carry their own uninsured and underinsured motorist coverage in the minimum amount of $250,000. This protects the drivers who get hit and injured by drivers who could care less about the harm they might cause while operating a motor vehicle, truck or motorcycle in California.

What Is My Claim Worth – What Are My Recoverable Losses/Damages ?

Answer: In California, a person victimized in an auto accident or other negligence claim is entitled to recover the following damages:
Economic Loss (Sometimes Called Special “Out of Pocket” damages) which include:

 Past and Future Medical Bills (Including Life Care) in Catastrophic Injury cases
 Past and Future Wage Loss / Loss of Future Earning Capacity / Future Employment
 Property Damages

Non-Economic Loss (Sometimes called General Damages or Pain And Suffering Damages) These losses monetary compensation payable to the injury victim for physical pain and mental suffering, and for loss of enjoyment of life, and for physical disfigurement and physical impairment.  These damages include monetary compensation payable to the injury victim for inconvenience, grief, anxiety, humiliation, and emotional distress. Non-economic damages reflect long-term or lifelong changes in a person’s quality of life. They are more common in accidents which result in catastrophic injuries that require victims and their families to make dramatic changes to their day-to-day lives. Non-Economic Damages are left up to the sole discretion of the jury or trier of fact and these damages are often the lion’s share of an injury victim’s damages.

Any lawyer who tells you what your claim is worth (or may be worth) when you first come to see the lawyer it not being forthright. A lawyer can make an educated guess, but the true value of a personal injury claim cannot be valued until the liability, injury causation, and damage issues in the case are fully investigated. This takes time and typically cannot be completed until a lawsuit is filed and the attorney has consulted expert witnesses for their opinions including medical providers, a life care planner and an economist. In all instances, damages cannot be ascertained until an injured person’s medical treatment is completed and a medical prognosis can be stated (what residual or permanent disabilities will require future treatment).

What Is A Contingency Fee ?

Answer: A contingency fee means the attorney handling your case will not charge you for his legal services (or costs advanced by the attorney) unless the attorney is able to make a financial recovery for you on your personal injury claim. Most personal injury cases are handled on a pure contingency fee basis. The percentage charged for a contingency fee is negotiable. In many cases, the attorney will advance costs on behalf of the client but those costs will have to be repaid when a recovery is made (and typically only if a recovery is made). Make sure you review the attorney-client fee agreement in detail before signing it.

Will I Be Required To File A Lawsuit ?

Answer: No. Whether the circumstances of your particular personal injury case warrant the significant costs associated with a lawsuit (and trial in Superior Court) must be analyzed by a competent and experienced attorney. A lawsuit can be settled, and many are settled, before filing a lawsuit. Moreover, the great majority of personal injury cases are settled after filing a lawsuit but before a jury trial. Most personal injury cases involving injuries to the head, spine and nervous system, that do not resolve within 12 months, and will require future medical treatment, should be considered for prosecution through the filing of a lawsuit. In many cases it is clear the injuries are going to result in long term medical care, loss of significant income, and permanent physical disability. Filing a lawsuit in these cases is almost always the right course of action (assuming the defendant is financially viable and/or is adequately insured).

Will I Have Any Financial Risk If I Lose In Court ?

Answer: Possibly. If you lose your personal injury lawsuit at trial (meaning the defendant is not responsible for causing the injury) you will be required to pay the costs (but not the attorney fees) incurred by the defendant. This rarely happens because no competent attorney is going to file a personal injury lawsuit if the defendants conduct was not a “substantial factor” in causing the event that prompted the injury. Sometimes, even if you win in court, because the amount awarded by the jury is less than what the defendant offered to settle the claim, you may have to pay the defendant’s expert witness fees and litigation costs. This doesn’t happen often, but it can happen. Filing a lawsuit does involve financial risks for the plaintiff and your attorney must disclose these risks to you.

I already have a lawyer, can I change attorneys?

Answer: Yes. The client hires the attorney and can terminate the relationship with or without cause. Nevertheless, for many reasons, you don’t want to change lawyers during the handling of your case, particularly once a lawsuit is filed. Most contingency fee agreements provide that if you terminate your lawyer you will be responsible for the original lawyer’s time already expended in the case at the attorneys hourly rate plus the return of costs advanced. The best advice is to find an experienced attorney as soon as possible after the accident causing the personal injuries.

What should I do if I am injured in an auto accident or other incident?

  • Obtain immediate medical assistance.
  • Hire an experienced personal injury lawyer as soon as possible.
  • Write a detailed summary of all facts surrounding the accident for your lawyer.
  • Do not give representatives of insurance companies or adjusters written statements or tape-recorded statements when asked to do so on the telephone.
  • Obtain a doctor’s note for all time taken off of work as a result of your accident, even if you are self-employed.
  • Save all physical evidence, and mark them with some type of identification tag. This may mean the shoes involved in a trip and fall accident, the receipt for products purchased at a store where you fell, or material or foreign objects which caused a fall.
  • Obtain and save the names of all witnesses and persons involved in an accident. Be sure to get the telephone number and address of the witnesses.
  • Take photos of all damages. This means damages to any motor vehicle, motorcycle, etc. Also take photos of all visible injuries. Be sure to develop these pictures immediately. If they do not come out well, retake the photographs before the physical injuries have healed. If a dangerous condition caused a fall, take pictures of the dangerous condition before it is changed or repaired.
  • Do not sign anything without the approval of your lawyer.
  • Don’t sign medical release authorizations sent to you by the insurance company.
  • Avoid gaps of time between medical treatments. Long periods of time between medical appointments is used by the defense to argue that the later treatment is not related to the accident.
  • Give each doctor you see an accurate history of how you were injured and what parts of your body sustained injury.

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